In Part One I addressed the legal underpinnings and difficulties in challenging a redistricting plan on the grounds that a district is not compact or contiguous as required by the Virginia Constitution.

In short, the Howell Plan is a mess. The Senators, in developing this plan, may very well have taken all of the other Constitutional and statutory requirements for redistricting into consideration but approximately one third of all Senate districts appear to have been drawn with little or no consideration for compactness. Following is a list of what appear to be the least compact districts with the top five singled out:

Least compact: 8, 9, 13, 15, 16, 18, 21, 29, 31, 32, 33, 37.

The top five least compact Districts in the Howell Plan and most likely to lead to litigation:

5. District 2 - District 2 picks up substantial portions of the Hampton Roads Newport News area but then jumps across the James River to pick up three oddly carved precincts called thirty seven, thirty eight, and thirty nine. On the shore of Virginia it is not odd that one would have a body of water between one portion of the district and the remainder of the district. What is odd is that the district crosses a substantial body of water in order to include three small precincts which are surrounded by multiple other districts.

4. District 1 - District 1 runs alongside District 2. In order for District 1 to run all the way down to the southern portion of its peninsula the Downtown precinct in Newport News has been split in order for District 1 to hug the coast. The district then jumps across the James to grab one precinct, Harbour View, despite the fact that this one precinct is surrounded by other districts.

3. District 36 - District 36 does not have one unique quality that makes it especially offensive. The district begins in Stafford and Prince William counties and meanders up the Potomac and into Fairfax County. Parts of the Featherstone, Rippon, and River Oaks precincts have been carved in such a way that they are accessible to each other only via water. Up in Fairfax County in order to place portions of the Villages and Franconia precincts in District 36 the district narrows as small as one half and three quarters of a mile in two different places. In order to include the Wilton precinct a portion of the district narrows to approximately 1/3 of mile. This district contains so many unnecessary and seemingly gerrymandered portions, it is more likely to warrant a challenge than many of the other meandering districts.

2. District 30 - District 30 stretches from South Arlington down to Fort Belvoir. To include the Hayfield precinct a sliver of the Villages precinct was carved to create a bottleneck to maintain contiguity. This bottleneck appears to be approximately 700 feet wide. More importantly to connect Alexandria with Mount Vernon the district runs along the Potomac River. The Hollinhall precinct was carved to create a neck to connect the two large land masses of District 30. This neck appears to be approximately 800 feet wide. District 30 represents a blatant gerrymander.

1. District 3 - You must look at District 3. District 3 is on the Chesapeake Bay and tidewater portions of the Commonwealth. District 3 covers gerrymandered portions of three major peninsulas and areas on the southern part of the James River. To travel from one end of the district to the other, without leaving the district, one would have to cross three major bodies of water. Additionally two precincts on the James River appear to have been severed for no reason, Bacon’s Castle appears to no longer be connected to Rushmere. The entire area along the southern coast of the James River appears out of place, and barely, if at all contiguous with the rest of the district. If any district would impose substantial difficulties on representation, it is this district. For these reasons District 3 is the most likely district to warrant a viable challenge on the grounds that it is not compact or contiguous.

Conclusion

All of this does not matter if no one bothers to challenge these plans. Perhaps the Senate Democrats will realize the follow of pursuing this plan as it stands, and tighten some of the districts before a final vote. Otherwise, we are probably looking to see the Virginia Supreme Court define compact and contiguous even further.

A final note: The problem districts as I have identified them are nothing more than my personal opinion. Any party wishing to bring these matters to court should consult an attorney and hire a third party expert to do an analysis, preferably before filing a lawsuit.

On March 29, 2011 political junkies were treated to a once every ten years phenomenon: The release of proposed redistricting plans drawn by the General Assembly that have an actual opportunity of passing into law. These maps can be found here:

(warning: to view the maps you need to install an additional program, and the maps are not easily copied.)

The Virginia Senate has two proposed plans: the first is from Senator Howell, reflecting the desires of the Democratic majority, the second is from Senator Watkins a Republican. Based on rumblings, it is expected that the Howell Plan is likely to pass the Senate without modification as the General Assembly has a history of deferring to the wishes of the particular legislative body in determining district boundaries.

The Howell Plan has serious Virginia Constitutional problems and is an invitation to litigation.

Prior to the release of these plans I posted a brief summary of what litigation opportunities to look for in analyzing the redistricting plans.

(I will use page references from the publicly available version herein)

There does not appear to be a publicly available version of Jamerson, online.

What does contiguous mean?

Contiguous has a generic dictionary definition, but under case law the word has been expanded to mean far mar than immediately touching. In Wilkins, the Virginia Supreme Court addressed what contiguous means. ". . . land masses separated by water may . . . satisfy the contiguity requirement in certain circumstances." Wilkins, p. 16. "While ease of travel within a district is a factor to consider when resolving issues of compactness and contiguity, resting the constitutional test of contiguity solely on physical access within the district imposes an artificial requirement which reflects neither the actual need of the residents of the district nor the panoply of factors which must be considered by the General Assembly in the design of a district." Wilkins, p. 17. "Each district must be examined separately." Wilkins, p. 18. The Virginia Supreme Court did not explicitly state (aside from an intervening land mass) what would qualify to make a district not contiguous, but did indicate that access to the various portions of the district must be shown to be "unreasonable, unduly burdensome, or adversely impacts the ability of residents to secure meaningful representation . . ." to invalidate a particular district. Wilkins, p. 17-18, 21. The burden of showing access is hindered is on the party filing the lawsuit.

"Compact" is even more difficult to define.

We all know what compact is when we see it, but "compact," in a legal sense, is exceedingly difficult to define. There are experts on compactness that the trial court may take into consideration. Wilkins, p. 20. In a battle of experts if a major geologic, or demographic reason exists to create an otherwise sprawling district, the government receives the benefit of nearly all inferences. Jamerson, 244 Va. at 514-517. Given the heavy weight accorded to the legislative body it appears the legislative body merely needs to allege that compactness was considered in order to have its plans upheld. Jamerson, 244 Va. at 517.

The burden of proof is on the challenger

It is also clear from the case law the burden of proof is definitely laid at the feet of the person challenging the redistricting plan. The Virginia Supreme Court stated in Jamerson that, “we must give proper deference to the wide discretion accorded the General Assembly in its value judgment of the relative degree of compactness required . . .” 244 Va. at 517. "[O]nly where the statute in issue is 'plainly repugnant' to a constitutional provision will we declare it null and void." Wilkins, p. 14 (citations omitted). At the outset, this sets an extremely high burden.

The legislature may balance competing concerns

Additionally, the Virginia Supreme Court has made clear that in analyzing whether districts are compact and contiguous the legislature is allowed to balance these two requirements against all of the other requirements in redistricting. Jamerson, 244 Va. at 517. “[T]he General Assembly must balance a number of competing constitutional and statutory factors when designing electoral districts. In addition, traditional redistricting elements not contained in the statute, such as preservation of existing districts, incumbency, voting behavior, and communities of interest, are also legitimate legislative considerations.” Wilkins, p. 17 (citations omitted). “[I]f the validity of the legislature's reconciliation of various criteria is fairly debatable and not clearly erroneous, arbitrary, or wholly unwarranted, neither the court below nor this Court can conclude that the resulting electoral district fails to comply with the compactness and contiguous requirements of Article II, § 6.” Wilkins, p. 15.

Is there a ray of hope?

Yes. Judges will be loath to render a portion of the Virginia Constitution meaningless. The Plaintiffs in the Wilkins case were actually very successful at the initial trial of the matter, even though the decision was overturned on appeal. Most importantly, Virginia Supreme Court Justice Compton dissented in the Jamerson case, stating:

“The 15th District crosses 12 counties, only six of which are wholly within the district, and cuts through three independent cities. The 18th District crosses six counties, only two of which are entirely within the district, and six independent cities, only one of which is wholly included in the district. The 15th District is approximately 145 miles long and is only eight miles wide at its narrowest point. The 18th District is 165 miles long, and only five miles wide at some places . . . Notwithstanding the deference to be accorded an act of the General Assembly and the findings of the trial court, I would decide as a matter of law, given the facts and circumstances of this case, that the legislature has exceeded the constitutional limitation on its power.” 244 Va. at 517

Reading the descriptions of those districts, and knowing at least one of seven justices thought they were inherently not compact, in Part Two we will look at the most offensive districts in the Howell Plan.

Based on the existing status of federal and constitutional law people looking at these redistricting maps in the hopes of defending them or challenging them in court should look for the following items:

Districts that deviate from the ideal size.

Federal constitutional law allows for state-level districts to deviate from the ideal size by up to 10%. Although districts are allowed to deviate by such a significant margin it is clear from federal law that such substantial deviation is not preferred and in fact if districts can be made much closer to the ideal size the government bears the burden of showing that a more precise plan is inappropriate. In 2011 the House and the Senate have determined the deviations should not exceed 1% or 2% respectively. If the districts do not deviate more than these proposed amounts it is unlikely any redistricting plan could be challenged on these grounds. The only instance in which such a challenge might be appropriate is if only a handful of districts come close to the threshold deviation amount, and each of those districts contains an usually high number of minorities.

Districts that are not contiguous.

This should be easy. All districts are expected to be contiguous. Aside from those instances, such as on the Eastern shore, where a body of water separates a sparsely populated landmass from the remainder of Virginia, every district will be expected to be contiguous. If any district is not contiguous, expect that someone will feel disenfranchised and litigation will ensue.

Districts that are not compact.

Districts must be compact. Compactness is a very subjective requirement. Any district that appears to snake along to barely connect differing communities is reasonably subject to challenge.

Districts that disenfranchise protected classes.

This also is a slightly amorphous concept. Districts must not disenfranchise protected classes. For example, minority communities must not have their votes diluted by spreading them across multiple districts, when it is clear they make up a similar contiguous community. At the same time, minority communities must also not be packed into districts to prevent them from having any effect outside of their clearly politically segregated districts. It is a difficult task to neither dilute the power of protected classes, nor segregate protected classes to separate voting districts.

What is most interesting about these constitutional and federal statutory protections, is the preclearance requirement with the US Department of Justice under the Voting Rights Act. Unlike in 2001, 1991, and 1981, 2011 will be the first time in US history in which voting rights act preclearance must go through a Democratic administration in the year following the census. It will be interesting to see if the Department of Justice under Atty. Gen. Eric Holder imposes greater scrutiny than in the previous three similar instances.

A note on the power of litigation (or lack thereof).

The reader should note that just because a valid lawsuit may be brought, does not mean that the lawsuit will be successful. There is still a preference within the court system not to interfere with redistricting which is considered an inherently political process. The reason, of course, why Virginia redistricting is perhaps more important than in the rest of the country is that redistricting in Virginia affects statewide elections in 2011 where as the rest of the country tends not to have statewide elections in till 2012. Virginia is a test case, and moreover, as Virginia is covered by the voting rights act there is an additional set of eyes on all redistricting plans thereby increasing scrutiny, and increasing the likelihood of identified legitimate litigation opportunities.

Saturday, March 26, 2011

On March 24, 2011 United State District Court Judge James P. Jones from the Western District of Virginia denied a Defendant's request to utilize a rarely employed procedural mechanism to request advice from the Supreme Court of Virginia in a pending federal case.

In the matter of Legard et al. v. EQT Production Co., EQT requested the W.D. Va. certify a question to the Supreme Court of Virginia regarding royalty payments for subsurface rights.The procedural mechanism sought by EQT is rarely utilized, but when the right is granted is an incredible tool for the interaction of federal procedure, state procedure, and state law.

Legard and EQT are involved in litigation over the payment of royalties allegedly due under leases to Plaintiff landowners in Dickenson County, Virginia.Royalties are paid to the landowners by a company that extracts the minerals form the earth pursuant to a contract.Royalties are often calculated as a percentage of the value of the minerals extracted.The question at issue in this motion is how the value of those mineral is calculated.In other words, do the Plaintiffs receive royalties based on the market value of the gas where it is extracted form the ground, or do the Plaintiffs receive a percentage of the value of the product once the lessee has delivered it to the stream of commerce (e. g. a larger pipeline or transport station where the product can be mingled with the product from other lines of production.)

A federal court case can be partially resolved in state court

This legal issue has not been settled under Virginia law.Federal courts, in certain instances, may hear matters involving state law.The Federal Court, where applicable, is required to follow the jurisprudence of the Commonwealth of Virginia's courts.In some instances, issues of great importance will arise for which Virginia courts have provided no precedent.

In these instances the Virginia Supreme Court of Virginia has provided a procedural mechanism for asking the Court to decide a single legal issue affecting a pending matter in a Federal Court, or in the highest appellate court of any other state.

This rule, although providing a powerful remedy (an advisory opinion), is designed for rare use as indicated by its many restrictions, for example:

1. No litigant may certify a question for review, only Judges.

2. The order issued by the Judge must contain certain specific elements, such as the exact question to be asked, relevant facts, and the reason the answer to the question is necessary for determination of the other proceeding.

3. The Judge signing the order certifying the question will have substantial control over the certified question, the facts presented, and the purpose of the question and could issue a certified question different form the one requested.

The Supreme Court of Virginia places two more caveats on certified questions:

1. The Supreme Court can deny to hear the certified question,

2. Even once the Supreme Court agrees to hear a certified question, the Court can revoke that agreement at any time.

As interesting as this procedure is, it is rarely used (see links for caseload statistics below).Judicial statistics from 2005-2008 show this procedure was used only three times.All three cases were accepted and ruled upon by the Supreme Court of Virginia

How the Legard court came to address this issue

The Court in Legard received a motion to dismiss from EQT.Judge Jones referred the motion to dismiss to Magistrate Judge Pamela Meade Sargent for review of the pleadings, and related documents, and to make a recommendation for Judge Jones' ruling.Mag. Judge Jones recommended finding the legal issue of timing of valuation in favor of the Plaintiffs.Based on speculation, Judge Jones would likely adopt the Mag. Judge's determination, so the Defendant sought this rarely used procedural mechanism of certifying the question to the Virginia Supreme Court to obtain a favorable ruling.

The opinion from Judge Jones on whether to certify the question is succinct, thoroughly cited, and well written.In short, Judge Jones determined this matter is not beyond determination of a Federal Court, would cause unnecessary delay and expense, and has been addressed by other jurisdictions thereby giving guidance to how Virginia law might determine the results.

Results

Although Rule 5:40 exists, it is rarely used, and appears to be a disfavored mechanism in Federal Courts.One should expect if Rule 5:40 is successfully invoked, it will be an important issue.I will update the post if I find any instances from 2009-2011 in which a question has been certified under Rule 5:40.

Saturday, March 19, 2011

Brian Schoeneman over at the Bearing Drift blog, and in the Bearing Drift magazine published a detailed article covering many of the same topics I addressed in my recent Primer on Virginia redistricting. The information in Brian’s article is worth the time to read regardless of your political persuasion.

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*Disclaimers: This website is for informational purposes only. Nothing in this website should be regarded as establishing an attorney-client relationship. Nothing in this website should be regarded as soliciting for employment in jurisdictions to which Paul A. Prados is not admitted. Past outcomes are dependent on the particular facts and circumstances of each matter and do not predict future results, and each new matter will be dependent on the facts or merits of the particular matter. There is no procedure in the Commonwealth of Virginia for approving certifying organizations or establishing any specialties listed herein.